When Off the Clock Doesn’t Mean Off the Hook

In the hyper-connected social media era, Big Brother is always watching—and that potential surveillance extends well past the reach of some prying government agency.

Employers are monitoring their employees’ out-of-office behaviour with unprecedented ease. That’s because virtually every form of public behaviour that could be captured on video now often is, then uploaded to platforms such as YouTube, Twitter, Facebook, or Instagram, whether those recorded know it or not. It can then be shared the world over.

Toronto-based engineer Shawn Simoes came to understand this harsh reality the hard way after defending a slur—which I’ll only mention in its abbreviated form as #FHRITP (Google it if you want the vulgar details)—that’s become something of an Internet meme over the past two years. The phrase is typically hurled at female reporters during live broadcasts.

In May, exasperated CityNews reporter Shauna Hunt challenged a group of male fans’ juvenile behaviour live on air following a Toronto FC home game. After one man shouted the FHRITP term, Simoes took apparent glee in defending the behaviour. Within about 24 hours, his employer, Hydro One, terminated the engineer after he was identified on social media and his annual salary in excess of $100,000 was exposed—the latter a tiny detail that only helped fuel mob outrage.

Hydro One, fully cognizant of the potential impact on its corporate brand, fired Simoes for his socially unacceptable behaviour and for acting in a fashion that contravened the company’s core values. Whether Simoes signed a code of conduct as part of his contract is unclear, although it is reasonable to assume that an employer of Hydro One’s size would have included such terms as a condition of his initial employment.

What is most interesting about this case is the swiftness with which the termination occurred, as well as the potential employment law fallout for Hydro One. The big question: Did the employer really have just cause to terminate?

To be clear, most employers observing an employee behaving in such a crude manner on television would be tempted to take similar action to protect their brand. Indeed, employers can terminate an employee without just cause at any time. The only remaining question is what they will owe the employee upon termination of employment.

But I urge you to think carefully before terminating an employee’s employment for off-duty conduct for cause because demonstrating just cause can be particularly challenging. In this case, establishing that Simoes’ actions contravened his organization’s workplace policies, that the behaviour called into question his ability to perform job-related duties, or caused detrimental impact to Hydro One’s brand reputation could be difficult to prove should Simoes ever decide to challenge his termination in court.

If the termination of Simoes’ employment occurred on a for-cause basis, the following would be relevant considerations: Was Simoes identifiable as a Hydro One employee? No, he was wearing a soccer jersey and did not identify his employer on camera. Was he charged with a crime? While Toronto police investigated the incident, they chose not to lay charges. Was he acting in an inappropriate manner? Yes, but because the behaviour was out of the workplace, it has to be considered whether the conduct violated any workplace policies. Finally, what harm could or did the conduct have on Hydro One’s brand? Ultimately, there would have to be a reasonable nexus between the workplace and Simoes’ off-duty conduct.

While a company as large as Hydro One has deep enough pockets to fire first and accept potential financial consequences later, the average small to medium-sized business does not. Here are four points to keep in mind if your organization is forced to decide whether to fire an employee for behaving badly outside the office.

Keep emotion out of it

To say there was outrage over Simoes’ behaviour would be an understatement. But as an employer, you need to be careful not to make subjective decisions based on anger, disappointment or your personal value judgment. Always consider the law, or at the very least the scope of your employment agreement and workplace policies (assuming you have them in place; if not, you may have a whole other set of challenges), before acting. In short, while you might be so incensed about the incident that you want to fire the misbehaving employee immediately, you may not have legal grounds to take action—at least not without taking this next step.

Conduct an investigation

The most troubling aspect of Hydro One’s response from an HR law perspective was the swiftness with which management ended his employment. It is questionable whether there was adequate time to conduct a thorough workplace investigation or take into account some of the key considerations discussed above, given that he was terminated within 24 hours of the incident. If Simoes were to challenge his dismissal, a judge could ask to see Hydro One’s workplace investigation into the matter, which may not exist. Its absence could cost Hydro One dearly. Remember that no employee should be dismissed on a for-cause basis without a thorough investigation conducted by HR, managers or legal professionals with training and experience in meeting the technical and legal requirements for workplace investigations.

Consider progressive discipline

There are many ways to discipline an employee. Suspensions or discipline can send a clear message that inappropriate behaviour will not be tolerated, no matter where it occurs. But again, there needs to be some evidence that the conduct negatively impacts your business prospects, brand and future financial success to justify imposing the discipline and to avoid a legal challenge from the offending employee.

Weigh the PR impact

In some cases, as in this one, the public relations fallout from the incident—not to mention the impact on your workplace culture—might justify instant termination, no matter the cost. That’s understandable, as long as your team is aware that such a move could potentially expose your organization to financial consequences in the event the decision is challenged. That said, any payout may still be worthwhile simply to save added stress and the potential bottom-line impact if the incident has the potential to irreparably harm your brand.

Laura Williams is an employment lawyer and founder ofWilliams HR Lawin Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.